700278 Form 27 [Rules 6.3 and 10.52(1)] Clerk’s Stamp COURT FILE NUMBER 2101-04670 COURT COURT OF QUEEN’S BENCH OF ALBERTA JUDICIAL CENTRE CALGARY PLAINTIFF BANK OF MONTREAL RESPONDENTS TRADESMEN ENTERPRISES LIMITED Justice Horner PARTNERSHIP and TRADESMEN COM ENTERPRISES INC. $50.00 July 15, 2021 APPLICANT KSV RESTRUCTURING INC., in its capacity as receiver and manager of TRADESMEN ENTERPRISES LIMITED PARTNERSHIP, and TRADESMEN ENTERPRISES INC. DOCUMENT APPLICATION FOR AN ORDER APPROVING INTERIM DISTRIBUTION, RECEIVER’S BORROWINGS, FEES AND ACTIVITIES ADDRESS FOR SERVICE AND BENNETT JONES LLP CONTACT INFORMATION OF 4500 Bankers Hall East PARTY FILING THIS 855 2nd Street SW DOCUMENT Calgary, AB T2P 4K7 Chris Simard/Sean Zweig/Joshua Foster Telephone: 403.298.3100 Facsimile: 403.265.7219 Email: [email protected] /[email protected]/[email protected] NOTICE TO THE RESPONDENTS (SERVICE LIST APPENDED AS SCHEDULE “A”) This application is made against you. You are a respondent. You have the right to state your side of this matter before the Judge. To do so, you must be in Court when the application is heard as shown below: Date: July 15, 2021 Time: 10:00 a.m. Where: The Calgary Courts Centre (Via WebEx Conference) Before Whom: The Honourable Madam Justice Horner Go to the end of this document to see what else you can do and when you must do it. REMEDY CLAIMED OR SOUGHT: 1. The Applicant, KSV Restructuring Inc. (“KSV”), in its capacity as the Court-appointed receiver and manager (the “Receiver”) of Tradesmen Enterprises Limited Partnership and Tradesmen Enterprises Inc. (together, “Tradesmen”) seeks an order (the “Interim Distribution Order”), substantially in the form attached hereto as Schedule “B”: (a) if necessary, abridging the time for service of this Application and deeming service of this Application, together with all supporting materials, to be good and sufficient; (b) approving and ratifying the activities of the Receiver, as described in the First Report of the Receiver dated July 5, 2021 (the “First Report”); (c) authorizing and directing the Receiver to make an interim distribution of the Net Proceeds (as defined below) to Bank of Montreal (“BMO”) in partial satisfaction of the BMO Pre-Filing Indebtedness (as defined in the First Report); (d) approving an increase to the Receiver’s borrowings and Receiver’s Borrowings Charge (as defined below); and (e) approving the fees and disbursements of the Receiver and its counsel, as set out in the First Report. 2. Such further and other relief as this Honourable Court may deem just. GROUNDS FOR MAKING THIS APPLICATION: Background 3. On April 15, 2021, BMO sought and obtained an order (the “Receivership Order”) appointing KSV as Receiver of all of Tradesmen’s current and future assets, undertakings and property, including all proceeds thereof (collectively, the “Property”). 4. Among other things, the Receivership Order: (a) authorized the Receiver to take possession of and exercise control over the Property and any and all proceeds, receipts and disbursements arising out of or from the Property; (b) authorized and directed Ritchie Bros Auctioneers (Canada) Ltd. (the “Liquidator”) to continue to perform its services under a Liquidation Services Agreement dated March 3, 2021 between the Liquidator and Tradesmen (the “LSA”); (c) declared that any proceeds (the “Net Proceeds”) arising from the transactions contemplated by the LSA that would be payable to Tradesmen be paid to the Receiver; (d) authorized the Receiver to borrow such other monies up to $2,500,000 as it deems necessary or desirable to fund these proceedings (the “Receivership Proceedings”) pursuant to receiver’s certificates (the “Receiver’s Certificates”); and (e) granted a charge up to $2,500,000 on the Property as security for the Receiver’s borrowings under the Receiver’s Certificates (the “Receiver’s Borrowings Charge”). Interim Distribution 5. Since the granting of the Receivership Order, the transactions contemplated by the LSA have been completed and the Net Proceeds have been paid to the Receiver. 6. To reduce Tradesmen’s interest obligations and facilitate the efficient and timely administration of its estate, the Receiver is now seeking authorization to distribute the Net Proceeds in partial satisfaction of the BMO Pre-Filing Indebtedness. 7. The Receiver has obtained a security opinion from its counsel on BMO’s security in respect of the BMO Pre-Filing Indebtedness. The security opinion confirms the validity and enforceability of BMO’s security subject to the standard qualifications and assumptions contained therein. 8. Subject to certain Court-ordered charges, BMO has the senior ranking interest in the Net Proceeds. Solely for the purposes of the proposed Interim Distribution Order, BMO has waived its right to repayment of the Net Proceeds in its capacity as the Interim Lender (as defined in the First Report) and the beneficiary of the Receiver’s Borrowings Charge. 9. The proposed interim distribution to BMO in respect of the BMO Pre-Filing Indebtedness will avoid the unfair consequences that would result from directing the Net Proceeds to the partial repayment of the Receiver’s Certificates, the Interim Financing Agreement (as defined in the First Report) or to otherwise fund the costs of the Receivership Proceedings. In each case, the Net Proceeds, which are not impressed with a trust, would be dissipated to fund the Litigation (as defined below) for which the ultimate recovery is expected to be subject to numerous trust claims. Increasing the Receiver’s Borrowings 10. Pursuant to the Receivership Order, the Receiver is expressly authorized to seek an increase to its borrowings and a corresponding increase to the Receiver’s Borrowings Charge. 11. The proposed increase in the Receiver’s borrowings is necessary to enable the Receiver to fund the Receivership Proceedings and maximize stakeholder recovery. 12. BMO is supportive of the proposed increase to the Receiver’s borrowings and the Receiver’s Borrowings Charge. Approving the Activities of the Receiver and the Fees and Disbursements of the Receiver and its Counsel 13. Since the granting of the Receivership Order, the Receiver, with the assistance of its counsel, has acted in good faith and with due diligence to, among other things, advance the Receivership Proceedings, oversee the transactions contemplated by the LSA, and attend to matters in Tradesmen’s ongoing litigation against Teck Coal Limited, Fluor Canada Ltd., Canadian Pacific Limited, the Province of British Columbia and FortisBC Energy (the “Litigation”). 14. Pursuant to the proposed Interim Distribution Order, the Receiver is seeking approval of its activities, as described in the First Report. Further, the Receiver is seeking approval of its fees and disbursements as well as the fees and disbursements of its insolvency and litigation counsel, Bennett Jones LLP and Lawson Lundell LLP, respectively. 15. The proposed fee and activity approval is appropriate in the circumstances. 16. Such further and other grounds as counsel may advise and this Honourable Court may permit. MATERIAL OR EVIDENCE TO BE RELIED ON: 17. This Notice of Application, filed. 18. The First Report, filed. 19. The Affidavit of Service, filed. 20. The Receivership Order. 21. Such other materials or evidence as counsel may advise and this Honourable Court may permit. APPLICABLE RULES: 22. Bankruptcy and Insolvency General Rules, C.R.C. 1978, c. 368. 23. Alberta Rules of Court, Alta Reg 124/2010. APPLICABLE ACTS AND REGULATIONS: 24. Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3. 25. Judicature Act, R.S.A. 2000, c J-2. ANY IRREGULARITY COMPLAINED OF OR OBJECTION RELIED ON: 26. None. HOW THE APPLICATION IS PROPOSED TO BE HEARD OR CONSIDERED: 27. Via WebEx video conference before the Honourable Justice Horner, with some or all of the parties present. WARNING If you do not come to court either in person or by your lawyer, the court may give the applicant what they want in your absence. You will be bound by any order that the court makes. If you want to take part in this application, you or your lawyer must attend in court on the date and at the time shown at the beginning of the form. If you intend to give evidence in response to the application, you must reply by filing an affidavit or other evidence with the court and serving a copy of that affidavit or other evidence on the applicant a reasonable time before the application is to be heard or considered. SCHEDULE “A” SERVICE LIST SERVICE LIST COURT FILE NUMBER 2101-04670 COURT COURT OF QUEEN’S BENCH OF ALBERTA JUDICIAL CENTRE CALGARY PLAINTIFF BANK OF MONTREAL RESPONDENTS TRADESMEN ENTERPRISES LIMITED PARTNERSHIP AND TRADESMEN ENTERPRISES INC. APPLICANT KSV RESTRUCTURING INC., in its capacity as receiver and manager of TRADESMEN ENTERPRISES LIMITED PARTNERSHIP, and TRADESMEN ENTERPRISES INC. Party Relationship KSV Restructuring Inc. Receiver of Tradesmen Enterprises LP 150 King Street West and Tradesmen Enterprises Inc. Suite 2308 Toronto, ON M5H 1J9 Attention: Bobby Kofman / David Sieradzki Phone: 416-932-6228 (t) / 647-282-6228 (m) Email: [email protected] / [email protected] Bennett Jones LLP Insolvency Counsel for the Receiver 4500 Bankers Hall East 855 2nd Street SW Calgary, AB T2P 4K7 Attention: Chris Simard/Sean Zweig / Joshua Foster Phone: 403-298-4485/416-777-6254 / 416-777- 7906 Email: [email protected]/ [email protected] / [email protected] 2 Lawson Lundell LLP Litigation Counsel for the Receiver 1100 Brookfield Place 225 – 6 Avenue SW Calgary, AB T2P 1N2 Attention: William L. Roberts / Alexis Teasdale Phone: 604-631-9163 / 403-218-7564 Email: [email protected] / [email protected] Borden Ladner Gervais LLP Counsel for Bank of Montreal Centennial Place, East Tower 520 – 3 Avenue SW Suite 1900 Calgary, AB T2P 0R3 Attention: Josef Kruger, QC / Jack Maslen Phone: 403-232-9563 / 403-232-9790 Email: [email protected] / [email protected] Fulcrum Capital Partners Inc.